Friday, September 29, 2006

U.S. to citizens, world: We can throw you in jail indefinitely with no trial. Yes, you, too. Democrats: Send us more money.

This is just fascinating. So I just finish reading about how essentially the rolling over and passing of this latest abomination means, well, ahhhhhhhhh.

Just go read Glenn Greenwald. Try not to stick your head in the oven.

Opponents of this bill have focused most of their attention -- understandably and appropriately -- on the way in which it authorizes the use of interrogation techniques which, as this excellent NYT Editorial put it, "normal people consider torture," along with the power it vests in the President to detain indefinitely, and with no need to bring charges, all foreign nationals and even legal resident aliens within the U.S. But as Law Professors Marty Lederman and Bruce Ackerman each point out, many of the extraordinary powers vested in the President by this bill also apply to U.S. citizens, on U.S. soil.

As Ackerman put it: "The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

This last point means that even if there were a habeas corpus right inserted back into the legislation (which is unlikely at this point anyway**), it wouldn't matter much, if at all, because the law would authorize your detention simply based on the DoD's decree that you are an enemy combatant, regardless of whether it was accurate. This is basically the legalization of the Jose Padilla treatment -- empowering the President to throw people into black holes with little or no recourse, based solely on his say-so.

There really is no other way to put it. Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

** that amendment failed. as did all of them. no habeus corpus.

Greenwald continues:

Thomas Jefferson, in his letter to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." And Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison people without a trial:

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.

And as a result, we are now about to vest in the President the power to order anyone -- U.S. citizen, resident alien or foreign national -- detained indefinitely in a military prison regardless of where they are -- U.S. soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?


Well, apparently, getting people with a "D" after their name in seats; as of just now my email contained about half a dozen of the same goddam "we're almost there, we just need more cash" chirps from Kerry and Reid and fuckall knows who else.


And yet, says Greenwald, goddamit, even now, it matters, yes. Although he is under no illusions about the D's (12 of the Senate Dems, please note, voted FOR this bill), even so:

For all their imperfections, cowardly acts, strategically stupid decisions, and inexcusable acquiescence -- and that list is depressingly long -- it is still the case that Democrats voted overwhelmingly against this torture and detention atrocity. The vote total on yesterday's House vote on Heather Wilson's bill to legalize warrantless eavesdropping reflects the same dynamic: "On the final wiretapping vote, 18 Democrats joined 214 Republicans to win passage. Thirteen Republicans, 177 Democrats and one independent voted nay." And, if nothing else, Democrats are resentful and angry at how they have been treated and that alone will fuel some serious and much-needed retribution if they gain control over one or both houses.

By reprehensible contrast, the Republican Party is one that marches in virtually absolute lockstep in support of the President's wishes, particularly in the areas of terrorism and national security. It was a truly nauseating spectacle to watch each and every one of them (other than Chafee) not only vest these extraordinary powers in the President by voting in unison for this bill, but beyond that, blindly oppose every single amendment offered by Democrats -- including ones designed to do nothing other than ensure some minimal Congressional oversight over these extraordinary new presidential powers. It was like watching mindless zombies obediently marching wherever they were told to march. That has been how our country has been ruled for the last five years and, unless there is a Democratic victory, we will have more of that, and worse, over the next two years.

There is one other consideration which, by itself, ought to be determinative. The only branch of government that has shown any residual willingness to defend the Constitution and the rule of law is the judicial branch. But critical Supreme Court decisions such as Hamdan -- which at least affirmed the most minimal and basic constitutional protections -- depend upon the most precarious 5-4 split among the Justices. One of the five pro-Constitution Justices, John Paul Stevens, is 86 years old. If George Bush has free reign to replace Stevens, it will mean that the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power -- Thomas, Scalia, Roberts, Alito and New Justice -- which will control the Court and endorse unlimited executive abuses for decades to come.

In a GOP-controlled Senate, Democrats cannot stop a Supreme Court nominee by filibuster anymore because Republicans will break the rules by declaring the filibuster invalid. The only hope for stopping a full-fledged takeover of the Supreme Court is a Democratic-controlled Senate.

Continued unchallenged Republican control of our government for two more years will wreak untold damage on our country, perhaps debilitating it past the point of no return. There is only one viable, realistic alternative to that scenario: a Democratic takeover in six weeks of one or both houses of Congress. Even that would be far from a magic bullet; the limits imposed by Democrats even when they are in the majority would be incremental and painfully modest. But the reality is that this is the only way available for there to be any limits and checks at all.

In the real world, one has to either choose between two more years of uncontrolled Republican rule, or imposing some balance -- even just logjam -- on our Government with a Democratic victory. Or one can decide that it just doesn't matter either way because one has given up on defending the principles and values of our country. But, for better or worse, those are the only real options available, and wishing there were other options doesn't mean that there are any. And there are only six weeks left to choose the option you think is best and to do what you can to bring it to fruition.

And ends on a note of infinitesimal hope:

And I think there is one other point that needs to be recognized about yesterday's vote: In 2002, virtually all of the Democratic Presidential hopefuls in Congress (Kerry, Edwards, Gephardt, Graham) voted for the Iraq war resolution, because they thought they had to be accommodationist in order to have a chance to win.

But this time, all of the Democratic Presidential hopefuls in Congress (Biden, Clinton, Feingold, Kerry) voted against this bill, because now they know that they can't be accommodationist if they want to win the nomination. Call that the Joe Lieberman Lesson. That is genuine progress, no matter how you slice it. Is it glorious, tearing-down-the-gate-with-fists-in-the-air Immediate Revolution? No. But it's undeniable incremental progress nonetheless.


So that's swell. And there's no doubt that I'm going to be voting, or who I'm voting for.

But you know: this time two years ago I was sending money (that i really wish i had now) to various campaigns, phone banking, and so on.

I still feel sick when I remember the night of the '04 election. And I feel sick now. And how many other times these past few years have i had that plunge in the guts? Who's with me here?

And you know what: it's like this. I think GG is probably right on this. It's the same damn line i said in '04 and '02. Last chance last chance last chance. I suer as shit don't feel like making some halfassed gesture on behalf of a "third party" that's fifty times MORE ineffectual and lameass and unlikely to win than the Democrats.

But I...

Maybe I should save my money, you know, for the flight in the middle of the night and the expatriation. I bet that sort of shit doesn't come cheap.

Unlike some people.



Alon Levy said...

It's really nice Greenwald thinks that Clinton and Kerry and Biden have a spine for agreeing to torturing and indefinitely jailing me but not you or Greenwald.

Vote Democratic: because we want to exempt 4.6% of the world from civil liberties violations.

belledame222 said...

I missed that bit. I thought he was pretty dismissive of the amendments in general. anyway it's a moot point: they're all defeated.

i assumed he was mostly talking about the slim possibility of actually being able to keep out whatever monster Bush and company have in store if Stevens kicks the bucket these next two years. and thus -maybe- keeping it more possible that SCOTUS will send this thing to the shredder where it belongs.

but yeah i dunno; i'm feeling pretty cynical these days...